January 24, 2006

SOMETIMES RESTRAINT IS AN UNSUITABLE RESPONSE:

Restraining Order (The Editors, 01.19.06, New Republic)

Ever since its founding in the Progressive era, this magazine has championed bipartisan judicial restraint and urged liberal and conservative justices to practice it consistently. Under the guidance of editors like Felix Frankfurter, Learned Hand, and Alexander Bickel, we have argued that judges should play a modest role in U.S. democracy, generally deferring to the judgments of elected legislators and striking down laws only when the constitutional arguments for doing so are clear and convincing. This vision of bipartisan restraint has led tnr to oppose activist Supreme Court decisions on both sides of the political spectrum, from Roe v. Wade to Bush v. Gore.

Imagine, if you will, that you have a friend who likes to eat. Over and over and over again you tell him that he should practice moderation, rather than just stuffing his face. But he he doesn't listen and for sixty years he just keeps bingeing until he's a bloated wreck. Now he asks your advice again. Do you tell him to be a moderate and maintain his current status?

Posted by Orrin Judd at January 24, 2006 5:45 PM
Comments

You say, "Just one more wafer-thin mint, Sir?".

Posted by: ghostcat at January 24, 2006 7:06 PM

Bush v. Gore was an exercise of judicial restraint, striking down the judicial activism of the Florida Supreme court.

Federal election law, arising from the Florida election debacle of 1876, prevented states from changing the rules in the midst of an election. The Florida court was attempting to do this, by changing the recount procedures theretofore set dorn by the state legislature, and the U.S. Supreme Court slapped them back.

Allowing a judge-made change in how elections were to be challenged, recounted and results certified would have been judicial activism.

So the MSM conventional wisdom has it exactly backwards, as we have all come to expect from those to whom truth means less than nothing.

Posted by: Lou Gots at January 24, 2006 7:55 PM

But Lou until a very short time ago, truth was what the msm said it was and it hasn't sunk in completely that those days are over.

Posted by: erp at January 25, 2006 9:40 AM

erp: There have been numerous books written about Bush v. Gore that lay it all out. Anyone can go on Findlaw.com and read the opinions. The truth is not hard to find. What we are seeing is that the truth just doesn't matter to those people.

There is an even more egregious example of this. For as long as I can remember, the anti-gun side has been repeating the bald-face, look-you-in-the-eye, no-sex-with-Monica lie that the case of U.S. v. Miller, 307 U.S. 174 (1939, upholding the National Firearms Act) stands for the collective interpretation of the Second Amendment. It does not.

That Court assumed without deciding that the stendard, or individual right, model of the Second Amendment was the law, and decided the case on the grounds that the record contained no evidence from which the Court could find that the sawed-off shotgun involved was suitable for militia use. This could have been shown, had the parties bothered, but they did not do so, and the Court correctly declined to take judicial notice of a technical question of fact.

Any of us could look it up and find this out, as could any of the atrocious liars at the ACLU, the Brady Campaign, the V.P.C., almost the entire MSM, and other assorted effete, impudent snobs who cite Miller as standing for the Collective model, and who repeat their lies to this day.

Posted by: Lou Gots at January 25, 2006 10:37 AM
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